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Lorenzo v. Prime Communications, L.P.

United States District Court, E.D. North Carolina, Western Division

March 29, 2018

ROSE LORENZO, on behalf of herself and all others similarly situated, Plaintiff,
v.
PRIME COMMUNICATIONS, L.P., a Texas General Partnership, Defendant.

          ORDER

          MALCOLM J. HOWARD, SENIOR UNITED STATES DISTRICT JUDGE.

         This matter is before the court on defendant's motion to decertify or amend the Rule 23 class previously certified in this action. On January 31, 2018, United States Magistrate Judge Kimberly A. Swank filed a memorandum and recommendation (M&R) recommending that Prime's motion [DE #310] to decertify the Rule 23 class be denied and Prime's motion to amend the Rule 23 class be granted. Defendant objected to the M&R, and plaintiffs responded. The parties also filed, as directed by Magistrate Judge Swank, a joint notice regarding a proposed amendment to the class definition.

         Pursuant to Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636, a district judge "must determine de novo any part of the magistrate judge's disposition that has been properly objected to." See also Local Civil Rule 72.4, EDNC.

Section 636(b)(1) does not countenance a form of generalized objection to cover all issues addressed by the magistrate judge; it contemplates that a party's objection to a magistrate judge's report be specific and particularized, as the statute directs the district court to review only "those portions of the report or specified proposed findings or recommendations to which objection is made."

United States v. Midgette, 478 F.3d 616, 621 (4th Cir. 2007) (citing 28 U.S.C. § 636(b)(1).)

         Defendant objects to the M&R arguing that the Magistrate Judge (1) failed to address the elements of Federal Rule of Civil Procedure 23(b)(3), (2) incorrectly concluded that Rule 23's commonality and typicality standards have been met by oversimplifying the rigorous analysis of commonality and typicality required in this matter, (3) failed to consider the merits of plaintiff's North Carolina Wage and Hour Act "NCWHA" claims as part of its class decertification decision, (4) should not have relied on the passage of almost four years since certification of the class as part of her reasoning for recommending denial; (5) and failed to address defendant's argument that plaintiff is not an adequate class representative. Defendant also notes it incorporates its prior arguments from its prior notice of objections [DE #475].

         The court finds these objections are without merit. Most of the objections are conclusory. The court notes that class certification questions are matters left to the sound discretion of the court. Amchen Prods., Inc. v. Windsor, 521 U.S. 591, 630 (1997) .

         Regarding defendant's objection that the magistrate judge failed to address the requirements of Rule 23(b), the M&R specifically states that the court previously certified the class based on Rule 23(b)(3) because "questions of law or fact common to class members predominate over any questions affecting only individual members and ... a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." Fed.R.Civ.P. 23(b)(3). Moreover, the court finds that the common questions of law and fact detailed with examples in the M&R address the proper finding that this class meets the requirements of Rule 23(b)(3), specifically the subscriber management fee issues, the chargeback policy and wage deduction policy issues, and advance notice issues. Furthermore, defendant's arguments regarding the lack of a trial plan are without merit. There is no requirement for a trial plan prior to certifying a class. Therefore, this objection is without merit.

         Next, defendant objects to the magistrate judge's finding that Rule 23's commonality and typicality standards have been met. As stated in the prior paragraph, there exist common questions of law that satisfy the commonality requirement and as plaintiff Lorenzo's claims are typical of the claims of the class, that requirement has been met as well. While no doubt there may be some individual damage calculations required, this does not negate the commonality or typicality finding, and in fact is common in class actions. As stated by the magistrate judge, Lorenzo's claims are not particular to her but rather are shared by the class.

         The next objection argues it was error for the magistrate judge to not consider the merits of the NCWHA claims in the motion to decertify. However, a court should not engage in "free-ranging merits inquiries." Amgen, Inc. v. Connecticut Ret. Plans and Tr. Funds, 568 U.S. 455, 466 (2013). Instead, the merits are only relevant for the purpose of determining whether the Rule 23 requirements are satisfied. Id. This conclusory objection is wholly without merit as the magistrate judge properly considered the merits to the extent required by Rule 23 and the caselaw.

         Turning to Prime's fourth objection, the court finds the magistrate judge also correctly considered the passage of time since the original certification of the class as a factor in considering whether to decertify. See, e.g., Hart v. Louisiana-Pacific Corp., No. 2:08-CV-47-BO, 2013 WL 12143171, at *1 (E.D. N.C. Mar. 29, 2013).

         Defendant's fifth objection is simply two sentences-arguing that because Lorenzo's claims are not typical, she is also not a proper class representative. Having previously found that her claims are typical, this objection is without merit.

         Finally, defendant incorporates its prior notice of objections. However, these objections were conclusory and the court finds any additional objections contained therein to be without merit.

         Having found the objections to be without merit, the court hereby finds the magistrate judge's recommendation to deny the motion to decertify to be proper. A full and careful review of the M&R and other documents of record convinces the court that the recommendation of the magistrate judge is, in all respects, in accordance with the ...


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